Sens. Grassley, Durbin question student-visa work extension

WASHINGTON -- With the cap on H-1B visas reached last week, proponents have renewed calls for a higher cap. But two leading critics of the program may be getting ready to seek new restrictions on the use of foreign labor.

U.S. Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Ill.) sent a letter Monday to Secretary of the Department of Homeland Security Janet Napolitano that outlined their concerns with the H-1B program. They were responding to a Government Accountability Office report this month that recommends reforms to the visa program.

Among the changes the GAO is seeking is better accounting of H-1B use. The government doesn't know how many H-1B workers there are in the U.S. or how many stay after their visas expire, the watchdog agency said.

The the senators wrote, "We are deeply troubled that DHS has no idea how many H-1B visa holders are working in the United States at a time when millions of Americans are unemployed."

But they also took aim at something that wasn't examined by the GAO: the 2008 decision by the Bush administration to extend the time that someone can work on a student visa, from one year to 29 months.

The Bush administration extended the student visa in response to H-1B visa demand. In the years immediately prior to the recession, the cap was being filled within days of April 1, the first day the U.S. accepts new petitions for the next fiscal year.

But this year it took 10 months for the 85,000 visas to be exhausted. The economy likely played a role in that, but the student visa extension, a period of time called Optional Practical Training (OPT), may have contributed as well.

About 16,500 people had applied for OPT extensions as of last September since the extension took effect in mid-2008. These are people who might otherwise apply for an H-1B visa to remain in the U.S.

In their letter, the senators said they are concerned that employers are using OPT extension to get around H-1B program rules. For instance, "There is no requirement that OPT students be paid the prevailing wage," they said.

President Barack Obama's administration has defended the OPT extension, saying that it is needed in order to "improve the competitive standing" of the U.S. About half of all H-1B visas are used by tech workers, particularly programmers and analysts.

John Miano, the founder of the Programmers Guild and an attorney, has called the OPT extension as a backdoor H-1B visa increase. He has challenged it in court.

"The fact that we are reaching the H-1B cap at all in an economy that is as terrible as the one we have clearly demonstrates that the H-1B numbers are too large," said Miano. "If H-1B usage were truly market-based, the visa numbers would go down close to zero in times like these."

Napolitano is being asked by Grassley and Durbin whether the department is "considering, during this economic downturn, revising the rule to revert back to the 12-month limit" that was in place prior to 2008? "If not, why not?" they asked.

One organization that tracks month-to-month changes in U.S. tech employment data, TechServe Alliance, reported that tech employment peaked at about 4 million in 2008; in January, it was just over 3.9 million.

Patrick Thibodeau covers SaaS and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov or subscribe to Patrick's RSS feed . His e-mail address is pthibodeau@computerworld.com.